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Why Chicago DA Kim Foxx Was Right to Let Jussie Smollett Off

Cook County State Attorney Kim Foxx arrives to speak with reporters at the Leighton Criminal Courthouse in Chicago, Ill., On Feb. 23, 201

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Photo: Nuccio DiNuzzo / Getty Images

Chicago cops are very, very mad. On Monday, the local Fraternal Order of Police continued to rape against the decision not to charge actor Jussie Smollett for falsely reporting hate crime, planning a protest outside the Chicago prosecutor's office, Cook County State Attorney Kim Foxx.

The The police have been joined in their fury by Mayor Rahm Emanuel and the cable hosts at Fox News, who have been apoplectic that the sentences handed down by a grand jury have not been translated into trial or imprisonment.

While the controversy is a A simple story for Fox News, the police, and Emanuel, it's much more complicated for people who care about criminal justice reform. And the decision raised the question of how committed in practice the public is to roll back mass detention and reform America's draconian approach to criminal justice.

It's easier to speak based on principles than to act on them. That's especially true when the public, across the political spectrum, is demanding its pound of flesh.

For years, the criminal justice reform movement has gained momentum by talking abstractly about the more than 2 million people behind bars, linking their plight to the the injustice of imprisoning nonviolent drug offenders. That's how it ended up with a bipartisan reform law – the First Step Act – that will not make a real dent in the prison population. Now that the movement is seeing success in district attorney races, and those new prosecutors are taking a new approach, the reality of the criminal justice in America is intruding.

Most of these 2 million people actually committed a crime that public deeply wrong and worthy of punishment. Prisons are overcrowded not merely with pot smokers, but with violent criminals serving ungodly mandatory minima. And those sentences are the result of a moral panic from the public, which rewards politicians, prosecutors and judges who down hard on people that society has condemned for their wrongdoing. People like Jussie Smollett

Smollett's alleged crime was not necessarily violent, though he seems to have purposely exacted violence against himself. In a publicity stunt, he allegedly paid two co-workers from the set of TV show "Empire" to beat him up so that he would be the victim of a homophobic, racist attack. He was told to be planning to use the resulting media attention to get a raise at work. If true, the allegations are deplorable, not just in the particular, but in the way that they undermine the future, the real victims of hate crimes. The public wanted Smollett's blood for it and, in the dominant criminal justice paradigm, the path would be clear: Stack those charges, lock him up and throw away the key. Put another body on the pile.

Kim Foxx was elected prosecutor over the fierce objections of the police, of Emanuel, and of the backers of the old paradigm. She ran as a reformer, arguing that the current approach is broken and that prosecutors should look for ways, where possible, to solve problems without resorting to imprisonment. The power of the office, she said, should be re-oriented towards the most dangerous and harmful of crimes.

That's the principle she runs. And she won Yet it's easier to speak based on principles – and to hear someone do so – than it is to act on them. This is especially true when the public, across the political spectrum, is demanding its pound of flesh.

The unpopular decision of Foxx's office, keeping in line with the principles she campaigned, stands as a rare example of genuine political drones – and It's courageous because the office knew that it would come with a major blowback. The easier thing to do would have been to lock Smollet up. Prison is always the easiest option.

The Smollet Fiasco, in some ways, is a useful moment in reckoning for the reform movement. Significantly lowering the number of incarcerated people will mean releasing some people who did things that make us very mad – and not imprisoning some of them too.

Foxx, because she had previously communicated with a relative of Smollett's, recused herself from the decision -making process. But she's standing by her deputy's call.

"Yes, falsely reporting a hate crime makes me angry, and anyone who does that deserves the community's outrage. But, as I've said since before I was elected, we must separate the people who we are angry with from the people whom we are afraid of, "Foxx wrote in an op-ed in the Chicago Tribune. "[O] The criminal justice system is at its best when prisons are used to protect us from the people we rightly fear, while alternative outcomes are reserved for those who make us angry but need to learn the error of their ways without seeing their lives unrevocably destroyed. "

Smollett, Foxx reminded readers, committed a Class 4 felony, the least serious category, and is suffering massive personal and career consequences. Should he be put behind bars? "I was elected as a promise to rethink the justice system, to keep people out of prison who do not pose a threat to the community," she wrote.